A well-known area of Kolhapur, Rajarampuri lies just to the north-west of Shivaji University. The Ring Road runs past the Rajarampuri Police Station. At around 11 am on the morning of 22nd February 2013, the Petitioner was, or so he says, having tea at a road-side tea stall not far from the rear entrance to Shivaji University. The 4th Respondent, the Sub-Inspector from the Rajarampuri Police Station, was on patrol in the area, along with his junior officers. They asked the Petitioner what he was doing. Mr Joshi, Learned Advocate for the Petitioner, submits that the answer is one that ought to have suggested itself. Yet the police found his conduct suspicious. The Petitioner was arrested, the police invoking their powers under Section 151 of the Code of Criminal Procedure, 1973 (“CrPC”).
Held – We were unaware that the law required anyone to give an explanation for having tea, whether in the morning, noon or night. One might take tea in a variety of ways, not all of them always elegant or delicate, some of them perhaps even noisy. But we know of no way to drink tea ‘suspiciously’. The ingestion of a cup that cheers demands no explanation. And while cutting chai is permissible, now even fashionable, cutting corners with the law is not.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1627 OF
Vijay Lahu Patil
The State of Maharashtra
Date : 6th September 2013
JUDGMENT : (Per G.S. Patel, J.)
1. Rule. Respondents waive service. By consent, rule made returnable forthwith and called for final disposal.
2. A well-known area of Kolhapur, Rajarampuri lies just to the north-west of Shivaji University. The Ring Road runs past the Rajarampuri Police Station. At around 11 am on the morning of 22nd February 2013, the Petitioner was, or so he says, having tea at a road-side tea stall not far from the rear entrance to Shivaji University. The 4th Respondent, the Sub-Inspector from the Rajarampuri Police Station, was on patrol in the area, along with his junior officers. They asked the Petitioner what he was doing. Mr Joshi, Learned Advocate for the Petitioner, submits that the answer is one that ought to have suggested itself. Yet the police found his conduct suspicious. The Petitioner was arrested, the police invoking their powers under Section 151 of the Code of Criminal Procedure, 1973 (“CrPC”).
3. Following the Petitioner’s arrest, the 4th Respondent made a proposal to the 2nd Respondent, the Special Executive Magistrate, that a good-behavior bond be taken from the Petitioner under Section 116 of the CrPC. The Magistrate ordered the execution of a bond of Rs.4,000. The Petitioner complied. His statement was recorded. He was asked whether he had understood the order made under Section 111 of the CrPC. On his application, a copy of the Station Diary was made available to him.
4. The Petitioner says his arrest was at 11 o’clock in the morning, but the Station Diary puts the time of arrest at 3:30 pm. It is on this basis that he mounts his claim for damages for illegal detention, but that, in our view, is a subsidiary matter. The impugned orders under the CrPC present far more fundamental problems.
5. Mr. Saste, Learned APP, invited attention to the annexures to the Affidavit in Reply filed by the 4th Respondent to suggest that the Petitioner is a hardened criminal, habitually given to criminal activity. He has a very large number of cognizable criminal cases registered against him. The local police were, he submits, therefore justified in acting as they did and apprehending the Petitioner before he committed yet another, a matter that seemed to them imminent at the time, there being no other way of preventing the likely crime. This, after all, he says, is the very purpose of Section 151 of CrPC. Once that was done, Mr. Saste argues, proceedings under Section 107 of the CrPC, requiring security from the Petitioner for keeping the peace, were the next logical and inevitable step. There is, in Mr. Saste’s submission, no merit at all in the Petition; the impugned actions are faultless.
6. Mr. Joshi, Learned Advocate for the Petitioners, disagrees. So do we. There seems to be very little justification for the impugned orders or even for taking the view the police claim they did. Why exactly his behaviour was thought to be suspicious, we are not told. We are only told that he has a very long line of criminal cases. A list of these is annexed to the Affidavit in Reply. It shows that all the cases, some 113 of them, are under the Gambling Act, with but one invoking other provisions of the Arms Act and the Indian Penal Code. This tabulation makes for interesting reading though not, alas, to the benefit of Mr. Saste’s submissions. It shows that in a substantial number of cases, the Petitioner has been acquitted. In other cases, trials are pending. Between them, there is not a single conviction, though even that would not have been justification enough. Of the 113 cases tabulated, fully 108 are outside the jurisdiction of the Rajarampuri Police Station. In his Affidavit in Reply, the 4th Respondent claims that the other offences were committed just outside the Rajarampuri Police Station’s jurisdiction. To show that the Petitioner is a habitual offender, the 4th Respondent refers to a subsequent case (of March 2013). We do not see how this can possibly assist the Respondents. The 4th Respondent maintains that the Petitioner is a repeat offender and that his acquittals are on what the 4th Respondent calls ‘technicalities’, such as witnesses turning hostile. Mr. Joshi is justified in contending that the unavailability of witnesses or their refusal to give evidence against the accused is not a mere technicality; and, in any event, this is wholly irrelevant.
7. What is not in doubt, however, is that the only thing the Petitioner was doing in the late morning of 22nd February 2013 was having tea at a local tea-stall. The 4th Respondent says there is no ‘satisfactory explanation’ for this. This is bewildering. We were unaware that the law required anyone to give an explanation for having tea, whether in the morning, noon or night. One might take tea in a variety of ways, not all of them always elegant or delicate, some of them perhaps even noisy. But we know of no way to drink tea ‘suspiciously’. The ingestion of a cup that cheers demands no explanation. And while cutting chai is permissible, now even fashionable, cutting corners with the law is not.
8. Sections 107 and 151 of the CrPC are, in terms, preventive, not punitive. Embedded in Section 151 are conditions that must be met for its invocation. A police officer may effect an arrest without a Magistrate’s order and without a warrant only where he learns that the arrested person is imminently likely to commit a cognizable offence. He must, in addition, be satisfied that the impending crime cannot otherwise be prevented. This means that the record must reflect a subjective satisfaction as to all these requirements. Where these conditions are not met, there is a violation of a person’s fundamental rights under Articles 21 and 22 of the Constitution of India. Similarly, a Magistrate’s jurisdiction under Section 107 is to be exercised only in an emergent situation.1
9. Beyond saying that the Petitioner had no explanation for being at the tea stall, we find nothing in the 4th Respondent’s Affidavit in Reply. This, in our view, is insufficient compliance with the mandate of Section 151. The Petitioner’s past history of criminal cases is equally irrelevant, since it cannot possibly lead to any conclusion of imminent criminal activity. We note that the cases listed by the 4th Respondent go back as far as 1998. There is no subjective satisfaction noted by the 4th Respondent or the 2nd Respondent on material that lends itself to any objective test.
10. The Respondents seems also to have misunderstood the frame of Chapter VIII of the CrPC. Sections 107 to 110 allow an Executive Magistrate to issue a show cause notice to such persons and under such conditions as are set out in those sections. Before any such show cause is issued, there must be an order under Section 110, for Sections 107 to 110 all say that the show cause notice must be issued “in the manner hereinafter provided”. Then follow the sections that provide for service of the show cause notice and the summons or warrant, an enquiry and a final order under Section 117. This is, therefore, a five-step process: an order under Section 110, followed by a show cause notice under Sections 107 to 110, then the procedure under Sections 112 to 115, an enquiry under Section 116 and, finally, an order under Section 117. That an order under Section 111 is a condition precedent to the issuance of a show cause notice under Sections 107 to 110 is now well-settled.2 This is for good reason. The order under Section 111 is an important safeguard, one of a web of checks and balances, against the potential abuse of powers under Section 107 to 110. The show cause notice, to be effective, must be something more than a mere suggestion received; hence the words “in the manner hereinafter provided”. Any other interpretation ends in a logical fallacy: if the order under Section 111 is to follow the show cause notices under Sections 107 to 110, then the provisions of Setion 116 and 117 would be entirely otiose. This is evidently incorrect. Section 110 is the brake-release that sets the train of Sections 107 to 110 in motion. That train then passes through the stations of Sections 112 to 115 and the enquiry under Section 116 before reaching its terminus in Section 117.
11. Mr. Joshi is correct when he says that in the present case there is only the combined proposal under Sections 151 and 107 of the CrPC followed straightaway by the order under Section 111. No opportunity seems to have been given to the Petitioner to show cause. The entire procedure under Chapter VIII has been inverted, the cart being put very firmly before the horse.
12. Mr. Joshi is also justified in contending that the entire process is unlawful. Previous acquittals cannot be brushed aside like this. This itself is a ground for relief and, at the very least, shows a complete non-application of mind, if not a colourable exercise of power, particularly when the previous cases referred to by the Respondents are of some considerable historicity.3
13. There remains the question of the Petitioner’s claim for compensation for illegal detention. Having regard to the decision of the Supreme Court in Rajinder Singh Pathania,4 we are not inclined to grant this relief.
14. The Petition succeeds in part. Rule is made absolute in terms of prayer clause (a), which reads thus:
“(a) The Hon’ble Court may be pleased to issue an appropriate writ/direction and may be pleased to call for the records and proceedings of the initiated u/s. 151 of the Code of Criminal Procedure, 1973 against the Petitioner and after examining their validity may be pleased to quash and set aside the proceedings u/s. 151 of The Code of Criminal Procedure, 1973 against the Petitioner.”
(G.S. Patel, J.) (S.C. Dharmadhikari, J.)
1 Rajinder Singh Pathania & Ors. v State (NCT of Delhi) & Ors., (2011) 13 SCC 329, paras 17 and 18
2 Dattaram Krishna Pedamkar v State of Maharashtra & Anr., 2009 (3) Mah.L.J. (Cri) 47; Vasantkumar Jivrambhai Majithia v State of Maharashtra & Anr., 2005 All MR (Cri) 2951; Riyasat Shaukat Ali Shaikh v State of Maharashtra & Anr., Criminal Writ Petition No.3039 of 2013, decision dated 3rd September 2013.
3 Abdul Razzak Nannekhan Pathan v Police Commissioner, Ahmedabad & Anr., (1989) 4 SCC 43; Ayub alias Pappukhan Nawabkhan Pathan v S.N. Sinha & Anr., (1990) 4 SCC 552; Dinesh Vitthal Patil & Anr v State of Maharashtra & Ors., 2012 All MR (Cri) 3582